Part 22: Republican Rigging

By Robert Warden

On February 13, 2016, Supreme Court (in)Justice Antonin Scalia died, apparently in his sleep. This vacancy in the court made the number of “liberal” and “conservative” members of the Supreme Court equal. Afterward, President Obama quickly nominated a relatively moderate judge, Merrick Garland, as Scalia’s replacement. In response, the Republican majority in the Senate, led by Mitch McConnell, refused to consider Garland throughout the remainder of Obama’s term, almost one year, even though Garland was a moderate, compromise nominee. This was an unprecedented move by the Republicans, in a blatant attempt to keep their majority on the Supreme Court, knowing that this is a vital part of their efforts to rig the political system. Sadly, their maneuver worked when Donald Trump was appointed President by the Electoral College. He promptly nominated conservative judge Neil Gorsuch for the Supreme Court, who Republican Senators confirmed and placed on the court by resorting to the “nuclear option” of requiring only a simple majority of Senators in order to confirm Gorsuch, rather than at least 60 votes as is customary (https://www.nytimes.com/…/neil-gorsuch-supreme-court-senate…)

This most unseemly move left the conservative majority in the Supreme Court in place. Whether it will hurt Republicans in the long term is a question remaining to be answered, but doing my little part to make them accountable is one reason that I write these blogs. This was certainly a dirty trick that Republicans in the Senate played, and it underscores the importance of the Supreme Court. Admittedly, the Supreme Court is usually something that operates in the background of politics, and thus I find its importance easy to overlook. However, this court is the arbiter of the ultimate law of the land. If you ever find yourself wondering about its importance, just think of the words “Citizens United.” Of course, there are many other very consequential decisions that the Supreme Court has made over the years. Basically, this court sets the tone regarding what can and cannot be legally done in the United States, by approving some laws or actions as being legal, while disapproving others, which are consequently made illegal. Thus, conservatives are very keen on gaining and keeping as many conservative (in)justices on the Supreme Court as they possibly can. After all, they have benefitted greatly from their majority, which has resulted in decisions such as Citizens United, allowing unlimited corporate funding of political candidates and causes without disclosure of the financial sources, as well as the decision to partially repeal the Voting Rights Act. All of the judges who voted in favor of these, and other, conservative decisions were appointees of Republican Presidents.

The current conservative majority in Supreme Court dates back at least to the appointment of Clarence Thomas in 1991. Prior to that, the court had a long period, dating back to FDR’s Presidency, of liberal majorities or at worst, periods when the court was basically evenly divided. One factor which has helped the progressive cause somewhat is that some judges, after being appointed to the Supreme Court, appear to trend more liberal than expected or than they had previously. In part, this could be due to difficulties in inferring a judge’s views from his or her record, but it also seems to represent a true shift in ideology, with some judges. Perhaps when tasked with arbitrating the ultimate law of the land, some judges see the perverse nature of the conservative agenda, and back off from it, not wanting such to be their legacy. The Chief Justice, Roberts, is an example of a judge who has shifted somewhat toward the liberal or at least moderate side since being appointed. So is Justice Kennedy, who appears to be the crucial swing vote in the as yet either undecided or unannounced case against gerrymandering. Thankfully, the inverse — becoming a conservative once appointed to the Supreme Court — does not seem to happen.

Nonetheless, the conservative majority in the Supreme Court that Republicans have enjoyed these past 26 years has been instrumental in helping them rig the system in their favor, with as journalist Allan Nairn calls them, “structural advantages.” By all rights, they should have lost this majority with the passing of Antonin Scalia, as well as the popular vote victory of candidate Hillary Clinton (and before that, the popular vote victory of Al Gore in 2000). Thus, one form of Republican Rigging — the Electoral College — which is actually written into the Constitution, has enabled another form of this practice, that is, keeping the conservative majority in the Supreme Court.
The best thing that we as citizens can do about this situation, is to try to ensure that a Democrat (or any progressive) is elected President in 2020, as more justices are likely to retire from the Supreme Court during that period. Also, we can protest the way that Gorsuch was appointed, and at least, if not have him replaced, make Republicans pay the political price for this misdeed. Having a liberal majority on the Supreme Court may be key to undoing the influence of corporations and their money on politics, among other issues that are important to us as progressives, including gerrymandering (especially if the current case does not go our way), voter suppression, and other means by which conservatives have been skewing the political system in their favor.